Iglehart v. Kirwan

Tuck, J., delivered the opinion of this court. Samuel J. Meekins disposed of his property, by will, in the following words: “I give and bequeath all my real, personal and mixed property to my beloved wife, Eliza Caroline Meek-ins, during her natural life, provided she does not many again, but if she should marry again then she is to have one-third of my estate during her natural life, the balance of it to be equally divided among my children. Item. I give and bequeath unto the creditors of John Linthicum, late of Anne Arundel county, Maryland, deceased, a sum of money sufficient to make up their loss in his final account, as passed by Dr. Wilson Waters, his executor.” The appellant filed his petition in the orphans court, showing himself to have been one of these creditors, in which he claimed the balance due him by the estate of John Linthicum, and interest thereon from 1830, when the distribution of that estate was made among his creditors. By an amendment of the record it appears, that the testator’s property, after paying debts and charges of administration, amounts to a sum more than sufficient to pay the legacies to Linthicum’s creditors, without impairing what would have been his wife’s share of his estate, if he had died intestate. We are, therefore, relieved from the duty of passing upon the argument of the appellee’s counsel as to the wife’s being a purchaser, for a valuable consideration, of what she may-take under the will. The questions before us are: — 1st, as to the time of payment of the legacies to Linthicum’s creditors; and 2d, whether they are entitled to receive only the amounts due by the final account on his estate, or those sums with interest from the time of its passage ? We must so construe this will as to give effect to every part of it, if we can, and the whole must be considered in order to ascertain the testator’s intention. The two clauses or items of the will are plain enough when read separately. But when — 564 — compared there is a partial contradiction, because the last cannot be gratified without taking so much from those provided for by the first clause. In cases of repugnancy where the clauses cannot stand together, and have effect, it has become an established rule, that the gift which is posterior in local position shall prevail, the subsequent words being considered as denoting a subsequent intention. But it is, also, an invariable rule, not to disturb the prior devise further than is absolutely necessary for the purpose of giving effect to the posterior qualifying disposition. 1 Jarman on Wills, 411, 414. According to this principle, the- last bequest in this will must be taken as a revocation pro tanto of the first. This conclusion we take to be warranted by the principle of several adjudged cases. In Croke Eliz., 9, Case No. 2, Anderson, Ch. J., said, “that, if one devise land to J. S. in fee, and after, by the same will, devise that land to J. D. for life/both parts of the will shall stand, and, in construction of law, the devise to J. D. shall be first.” In Sayer vs. Sayer, Prec. Chy., 393, Ward on Legacies, 378, the Lord Chancellor, in pronouncing the decree said: “But the case may so happen that a specific legacy shall be chargeable 4dth the payment of a pecuniary legacy, as in this case, after he had devised his personal estate in Wamsted, if he had likewise devised his personal estate at such another place, and then devised 300of out his personal estate, and died, leaving no other personal estate than in the two places before mentioned, this 300=# legacy must have come out of his personal estate at large, in both places.” Now, the case put by the Lord Chancellor is like the one before us, with the exception of the words italicized. In both wills the whole estate is parted with, and afterwards, pecuniary legacies given to other persons. W.e do not perceive that the words, “out of his personal estate,” can give effect to the last legacy in one .case, and that it must fail in the other, or be postponed for the , want of such words. If they had not been inserted, the legacy, if paid at all, must have been satisfied out of the estate previously bequeathed, because there was no other fund wherewith it could be satisfied, and the same is the state of things here. — 565 — In Ridout vs. Dowding, 1 Atk., 419, Lord Ch. Hardwicke thus stales the case: “A testator in the first part of a will gives his wife an estate for life in particular lands, and in the latter part creates a term for years, to take place from the day of his death, in trust for raising sums of money to discharge his debts, in such manner as the wife should direct. The question is, whether the wife is entitled to have her estate for life discharged of the term. Notwithstanding the testator has, in the outset of his will, given her an estate for life, yet I am of opinion the term, though subsequent, shall take place of the wife’s estate for life. It is immaterial how a testator places the several devises in a will, because the whole must be construed together, so as to make it consistent.” In the case of Ulrich vs. Litchfield, 2 Atk., 372, this y-file of construction was applied with more strictness, the Lord Chancellor being of opinion, on the particular terms of the will, “that the testator had made an alteration in her intention throughout,” and that the party claiming under the first clause was entitled to nothing. But he remarked, “it is truly said that a man may give the whole in a former part, and qualify it afterwards, and still the first legatee is entitled in part.” In 1 Jarman, 416, this case is stated, “where a testator, after devising the whole of his estate to A, devises Blackacre to B, the latter devise will be read as an exception out of the first, as if he had said, I give Blackacre to B, and, subject thereto, all my estate or the residue of my estate to A,” for which reference is made to Cuthbert vs. Lempriere, 3 M. & S., 158. Upon examining that case we do not find the decision stated in these terms, but it does support the doctrine of the cases above mentioned. And in Blamire vs. Geldart, 16 Ves., 314, Sir William Grant, in deciding upon a will with contradictory clauses, says: “In a will it is not material in what order the clauses arc arranged. The question is, what is the effect upon the whole. This testator begins by giving to G. P. the stock at the death of his wife, and then gives to his wife the whole of his property. Consequently, she has a life interest in that stock so given to G. P. at her death, for it is part of the property not anteced — 566 — ently disposed of. Thus the will, no matter in what order, divides the fund between these two persons, giving to one the interest for life, and to the other the capital at her decease.” It results, therefore, according to these cases, that whether the bequest, to the creditors of Linthicum, was intended as a revocation pro tanto of the first clause of the will, or the whole be considered as containing partially inconsistent dispositions of the property, the appellant is entitled to receive the amount of his legacy, that is, his claim against Linthicum, before payment of the wife’s legacy. And as the testator has not indicated a time for the payment of any of the legacies, they are payable at the time limited by.law. If Linthicum’s creditors are not to receive the amounts due them by his estate, and bequeathed to them by this will as general pecuniary legacies, according to this construction, it may be asked, when are they to be paid? The appellee’s counsel answers, at the termination of the wife’s estate. But this answer suggests other inquiries. Suppose she marries again, and thereby reduces her life estate in the whole property to an estate for life in one-third, the other two-thirds'becoming the property of the testator’s children, out of whose share will the appellant be paid ? Will the wife take her third, as a legatee purchaser, clear of the claims of Linthicum’s creditors, throwing this burden on the children, or will she and they be required to contribute for their satisfaction? They are not provided for under the first clause in either contingency. In both the whole estate goes to others. To the wife for life, if she does not marry, and to his children, as heirs at law and distributees of the reversion after her life estate; or, if she does marry again, to her and the children in the proportion of one and two-thirds. And, in the last contingency, could these legatees, Linthicum’s creditors, claim to be paid until the death of Mrs. Meekins, at which time the children would become entitled to the third left to her ? According, to the argument they are not to be paid to the prejudice of the widow, that is, as long as she may live, if any thing is to be taken from her share for their satisfaction. It might happen, therefore, that they would receive no part of — 567 — their legacies until her death, whether she married or not. Upon this hypothesis, the children might contend, that inasmuch as their father had postponed these stranger legatees to the death of his wife, if she did not marry, at which time only they would receive any part of his estate, so the same construction should obtain m the event of her marrying, whereby they could not be called on for payment of the legacies, until, as in the former contingency, they had succeeded to the whole estate. Now we do not suppose that the testator contemplated, that tbe time of satisfying these creditors should depend on any such contingencies. Even if he had intended to postpone them, until the expiration of the wife’s life estate in the whole property, in case she did not marry, it is reasonable to suppose, that he would have indicated how they should be paid, that is, out of whose portions of the property in the event of her marrying, when the estate was to be divided between her and the children. Looking to the whole will and the uncertainties resulting from any other construction, we think that the testator intended to pay the debts of John Linthicum, and that his wife and children should enjoy the residue, as provided in the first clause of his will. As to the second question. The appellant claims that the amount of his legacy, as one of John Linthicum’s creditors, is to be ascertained by adding to the sum appearing to be due to him by the final account on his estate passed in 1830, interest on that sum from that time, whereas the' appellee insists, that the sum due by the final account, that is $162.07, without interest from 1830, must be taken as the sum bequeathed to the appellant. In this latter view we concur. The intent of the will was to give to the creditors of Linthicum such sum, in the aggregate, as would make up their loss, that is, the amount left unpaid by his estate, and the means of ascertaining this, was to be the final account of his administrator. Whatever, therefore, that exhibits as the balances due them, must be taken as the legacy to each. This is the criterion furnished by the testator himself, and the appellant cannot demand any thing beyond that sum as his legacy, which, — 568 — however, will carry interest at the end of one year after the testator’s death, according to the general rule, where the time of payment is not mentioned in the will. Crain, & al., vs. Barnes, & al., 1 Md. Ch. Dec., 151, affirmed in 8 Gill, 391. Order reversed and cause remanded, with costs to the? appellant.